RAQs: Recently Asked Questions

Topic: Using music videos for projects - 3/5/2020
An internationally known band released various music videos for the purpose of a contest they were...
Posted: Thursday, March 5, 2020 Permalink

MEMBER QUESTION

An internationally known band released various music videos for the purpose of a contest they were holding. Fans were asked to create a new video using the clips provided. One of our professors downloaded and saved the music videos and would like to share them with his students so they can use them for an editing project. He would like to post the copied files in his password protected class management system (Black Board.) However, we would also like his students to be able to share their projects either in an eportfolio or online.


My initial reaction is that he should get permission from the copyright holder / publisher for permission even though the band released the content for a contest. I see many danger zones.

WNYLRC ATTORNEY'S RESPONSE

Some of the trickiest copyright questions I get relate to student work.

Why are they tricky?  Because of a self-imposed rule I have: find a way for the work to be donedon’t let copyright interfere with art and science.[1]  In other words, our copyright glass of scholarship should be half full…of scholarship, not fear of lawsuits.

That said, most readers of this column will know that “educational use” does not justify the wholesale infringement of works, even if the purpose is scholarship.  To use a work without permission, the use must meet the criteria of “fair use.”[2]

But I’m getting ahead of the question.  Let’s bring it back to the beginning.

What’s the tricky issue here?  In this scenario, the band “released various music videos,” and asked the public to create new works based on the old, for entry into a contest.[3]

The band was essentially asking the public to create “derivative works,” which are new works based around a copyright-protected original (think movie sequels, musicals based on books, and paintings of paintings).

The faculty member plans to retain copies and direct students to use them after the completion of the contest, both for assignment and portfolio purposes.  Is that cool?

Now, if the band’s videos were expressly put into the “public domain” for the contest (meaning: no copyright protection) the question ends here. If the clips aren’t protected by copyright, the faculty member’s plans are just fine (it’s cool).[4]

Further, if the band gave a perpetual, irrevocable permission to any person who generates a new video using the clip, to use the clip for whatever reason they want, the question also ends here (again, retain the copy and using it as planned is cool).

But if instead, the band kept the videos protected by copyright,[5] and gave the public permission for only a limited amount of time (say, the duration of the contest), for a limited amount of purposes (say, for entering the contest), then yes, we are in a “danger zone” (not cool).[6]

However, before I agree that the ideal solution is to get the copyright owner’s position, I do want to make a case for fair use, which allows people to use copyrighted works in way that would otherwise be infringing (make copies, make derivative works, and even at times to sell them).

Based on the scenario described, it is not clear if the retention of copies as described in the scenario would be a fair use.  It would have to be justified under the four fair use factors, with the school and student being able to show that the retention of a complete copy and use of the clip for assignment and student portfolio purposes was justified.

The way for a school to do this is to use their fair use assessment form[7] and retain a copy.

To me, aside from the legal concerns, this is also an ethical issue.  A faculty member should not encourage a student to unknowingly infringe another’s copyright, especially if they know that student might include that work in an online portfolio of work.  This could put the student in legal trouble that is independent from the liability of the school.

Students, as individuals, do not have the same protections that higher education professionals have.  Schools, if they conduct a bona-fide fair use analysis, can limit the damages from alleged infringement.  Schools also usually have insurance for this stuff.  Newly-minted B.A.’s and M.F.A’s typically do not have the same resources.  This means, when the student gets sued, they are in a much riskier place than the school or the faculty member.

All that said, remember the mantra: find a way for the work to be donedon’t let copyright interfere with art and science.  What does this mean?  While being cautious to not promote infringement, a faculty member in a medium such as film, or music, should not let students operate in ignorance of fair use, which is so important to both mediums.  Without sampling, without artistic call-and-response, we suffocate creative innovation.

If that sounds complicated, it is!  I will be reaching out to this member to talk the specifics through (that part is confidential).



[1] Promotion of “science and the useful arts” is the reason we have IP law in the first place (see U.S. Constitution, Article I, Section I, Clause 8).

[2] Or Section 110(a) or (b) of the Copyright Act. But you can read out that here [INSERT PERMALINK].

[3] As gimmicks go, I like this one.  I wish my favorite author, Umberto Eco, had invited me to write a chapter of “The Name of the Rose.”  I would have had Adso and William fire-proof…uh, sorry, spoiler.

[4] I speak legally, not pedagogically.  I have no idea if this would be a good film class assignment; I was a Russian History/U.S. Constitutional law major at an experimental school with no grades or tests (Hampshire College).  Other than once attending a class on the classic film “Battleship Potemkin” and whatever skills can be gleaned from serially watching the musical “1776,” I have zero credentials to evaluate the curriculum of a film course.

[5] Which, by the way, the band might not even own.

[6] For the record, if I were the lawyer advising this band, the contest terms would have contained a clause allowing my client to revoke permission to use the clip and participate in the contest in the event an entry was contrary to their values (racist, sexist, transphobic, etc.). 

[7] More information using a Fair Use Assessment form can be found here: https://copyright.cornell.edu/fairuse

Tags: Copyright, Derivative Works, Fair Use, Music

Topic: Copies of music - 2/6/2020
Can a school or library hand out copies of sheet music to students and keep their copies of the or...
Posted: Thursday, February 6, 2020 Permalink

MEMBER QUESTION

Can a school or library hand out copies of sheet music to students and keep their copies of the originals (as long as they had enough copies for each performer) to prevent the loss of the originals? The copies would be destroyed after the performance.

WNYLRC ATTORNEY'S RESPONSE

One of my all-time favorite TV shows is Gilmore Girls.

Aside from being the origin of many expressive phrases ("Oi with the poodles already!"), as a parent, Gilmore Girls gave me a concept I used almost daily: "jam hands."

What is the origin of "jam hands"?  In Season 2, Episode 5, “Nick & Nora/Sid & Nancy”, the perpetually grumpy "Luke" character, upon being confronted with the prospect of childcare, confesses to a distaste for children: because they are loud, because they are messy, and because their hands always seem to be coated in jam.[1]

I have two kids.  "Jam hands" are very real.

My oldest kid (15, as of this writing) has paid his dues playing violin and piano, so I have personally witnessed the damage "jam hands" can do to instruments and music.  It must be jam warfare out there.

And of course, a kid can lose sheet music simply by putting it in their backpack.[2]

I don't know if “jam hands” and possible “backpack black hole” are the big reasons for this member wanting to give students back-up copies while retaining the "real" ones in a file, but I suspect that is at least part of the rationale.  Why wait until the good copies get destroyed or go missing?  Why not make back-up copies in advance?  If "fair use" creates educational exemptions to infringement, isn't this a use that qualifies?

Sadly, when Congress developed the "fair use guidelines" for educators,[3] they did not invite any parents to the advisory committee, and so the "jam hands" and "backpack black hole" clauses did not make it into the final guidelines.  Instead, those guidelines specifically prohibit copying for performance, except for:

Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

So: no copying in advance…but, in the face of an "imminent performance," copying to replace "unavailable" purchased copies is okay (provided the replacement copies are "substituted in due course").

What does this tell us?  In this case, it's better to be re-active, than pro-active.  When a student jams up or black holes a copy, an educator can make replacement for a performance.  Just make sure you get around to purchasing and substituting (instead of destroying) those "replacement copies," in "due course."

I would of course love to leave this answer right there, having dispatched sage wisdom and quoted from decades-old guidance from Congress.  But I have no doubt that by now, at least one reader has said "Well, what's 'due course'?" And I don't want to be accused of fraternizing with the tomato.[4]

A lot has changed since the guidelines I quote above were drafted.[5]  Inspired by this question, I took a look at the sheet music market, to see if the landscape for fair use had shifted.[6]

As I am sure any music teacher reading this knows (but what was news to me), these days teachers can often print sheet music on demand (for a price).  And while of course not every copy a school has in print is available for download, the "emergency" aspect of the clause quoted above loses some heft when a copy can be obtained for $2.25 online.

THAT SAID, I know music program budgets rise and fall on nickels and dimes. I am not suggesting that a teacher or librarian solve this problem by simply immediately buying new copies; rather that when it comes to deciding what amount of time is "due course," the answer is: no later than when you can make the replacement purchase as part of your next budget cycle.

That said, before stressing about fair use and "replacement copies" and "due course," always check the fine print on the music (and on copies available from other sources).  While on my sheet music web site tour, I noted that some (but not all) of the sheet music I saw for sale had the phrase "this copy may be reproduced by the purchaser," and other flexible licenses.  So, for each piece of music you want to copy, before you worry, check the fine print.  You might have more permission than you think.

I wish I could give a better answer in the fight against “jam hands.”  But at least your answer didn’t fall into a “backpack black hole!”



[2] Don't watch your kid do this.  It's addictive.

[3] Set forth in the Copyright Office's "Circular 21," which is found here: https://www.copyright.gov/circs/circ21.pdf

[4] Another beloved Gilmore Girls reference

[5] For instance, Gerald Ford is no longer President.

[6] I particularly appreciated the functionality of https://www.jwpepper.com/sheet-music/welcome.jsp.  As a non-musician, I am not qualified to comment on their selection or quality.

 

Tags: Copyright, Music, Photocopies

Topic: Music Accompaniment - 1/16/2020
Can a music accompaniment part be recorded ahead of time for a performance as long as the school o...
Posted: Thursday, January 16, 2020 Permalink

MEMBER QUESTION

Can a music accompaniment part be recorded ahead of time for a performance as long as the school or library has a copy of the sheet music? Can a few modifications be added to the accompaniment as long as the heart of the work is preserved? Can this recording be shared among schools and libraries as long as each organization has a copy of the sheet music with performance rights?

WNYLRC ATTORNEY'S RESPONSE

This question came in from a school system, and it triggered a lot of memories for me.

My junior high school music teacher was a very nice man.  From deep within mid-1980's Central New York, he tried to cobble together an orchestra from an array of students whose skills and practice habits ranged from "Julliard-bound," to "who is torturing that cat in the third violin chair?"

Back in 1986 (when I was 13), I saw this guy as "old."  Because of the way he tirelessly started the music over (and over) until the brass section[1] entered at the right bar of "Star Wars", I also saw him as a font of endless tolerance.

Now that I am older, my memory portrays my former teacher as a pretty young guy (I think he was in his early 30's).  And by now I have worked with enough educators to know that his tireless tolerance of our incompetence was passion.

So, this question has stirred a feeling of nostalgic gratitude.  Because of that,[2] I want to give this member an answer that is really solid, helpful, and clear.  But as they say in the construction biz when people ask for a job that is quick, quality, and cheap: I can give you a combination of any two, but not all three.

Here is the part of the answer that is solid and clear: Making a recording of a copyright-protected composition, unless the recorder has the permission of the copyright owner, or the recording falls under an exception, is copyright infringement…even for educational purposes.

Is there helpful and solid authority on that?  Yes. Circular 21, the long-standing guidance on the relevant copyright laws,[3] makes it clear that for educators, only the following recording of musical compositions is allowed under "fair use":

A single copy of recordings of performances by students may be made for valuation or rehearsal purposes and may be retained by the educational institution or individual teacher.

[AND]

A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

So, at first blush, the answer to the member's first question (and thus, all the following questions) is: NO.

Now, the core guidance in Circular 21 is OLD.[4]  It pre-dates streaming, it pre-dates file-sharing, and depending on what start date you give the web, it pre-dates the Internet.  But insofar as case law and legal commentary is concerned, it abides.[5]

So, while I have to answer a resounding NO to the question just as it is asked, I can offer a few helpful and clear solutions.

First, it never hurts to ask.  Depending on the copyright holder, you may be able to get a "limited license" for the very thing you want to do.  Some owners might even be charmed.  Others, of course, will just refer you to their manager.  You never know until you try.  Just make sure you get it in writing.

Second, while the Circular 21 guidance quoted above gives clear examples of what fair use permits, on page 7 of Circular 21, just before listing those guidelines, it states "There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use."

So, if a version has been recorded for performance as part of a clever mash-up, for purposes of commentary and criticism, or another use that might meet fair uses' four factors, this approach is worth considering.  Sadly, since that is a case-by-case analysis, I can't say what precisely when that is allowed!  An education institution should perform such an analysis using its fair use form.[6]

Third--and I can't believe I am suggesting this--it may be that a combination of different licensing can arrange this precise permission for you.

We'll call this the "Two-Step Shuffle" solution.  It is meant to be helpful, and it is solid, but I am concerned it might not be too clear.  But let's give it a go.

NOTE: to use the "Two-Step Shuffle" solution, your institution MUST have a public performance license from a licensor like ASCAP or BMI.  So, if your school doesn't have one, just stop reading, right now.  But if you do…

Step one: see if the song you want to record is licensed for "covers" on a publicly accessible "host site" like YouTube.[7]  If the host site[8] has the license, you can record the accompaniment as a "cover," and put it on the host site.

Step two:  With your "cover" recorded, you can then play it from YouTube at any premises that has a license for public performance (this is why you need that license from ASACP or BMI…which is also what covers playing music at a high school dance, music over the loudspeaker during halftime, etc.).

Of course, this being an Internet solution, the "Two-Step Shuffle" solution could disappear at any moment!  But this being the Internet, something else will take its place.

Now, in suggesting a school to make use of a commercial video hosting service (like YouTube), I would like to take a moment to discuss those two important legal concepts: "Coulda," and "Shoulda."

Just because a school can upload content to a site like YouTube, and get a license for a cover, doesn't mean it should.  After all, when using a service like YouTube, an institution agrees with these terms:

By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors' and Affiliates') business, including for the purpose of promoting and redistributing part or all of the Service.

In other words, you're feeding the beast; you're commodifying the content you've chosen to share.  If it's student work, there are privacy and further intellectual property concerns (students own their copyrights, after all).  None of these are things an educator should take lightly.

That said, if approached with the right balance of attention to legal details and commitment to artistic excellence, the "Two-Step Shuffle" can also show future artists and performers how to respect copyright law and engage in self-promotion (which seems to be a critical skill  nowadays).  So "woulda, coulda, shoulda?"  If you undertake the "Two-Step Shuffle" solution, do it with an "ethics buddy" (preferably an administrator who has your back).

And of course, a "Two-Step Shuffle" solution can only be used if you can answer these questions in the affirmative, and you preserve the documents from which you derive your answers:

  1. Do you have express permission from the host site to make and post the recording on the host site?
    1. If "yes," keep a copy of that permission.
  2. Do you have express permission to perform the recording at the premises?[9]
    1. If "yes", keep a copy of that permission, too.

That second part pertains to any other school or place that wants to publicly use your recording, as well.

So, there you have it.  Was this solid and/or helpful and/or clear?  In keeping with my Junior High memories, I give myself a "B."

I do wish this answer was a little less like trying to get the brass to come in at the right bar of "Star Wars," but copyright, fair use, and licensing take time and attention to detail to get right.

That said, with enough passion to fuel the effort, I am confident you'll hit the right note.



[1] That was me.  I played trumpet.  And had braces. NOT a good combo.

[2] And because I have high standards.

[3] Circular 21, "Reproduction of Copyrighted Works by Educators and Librarians," which has been in use since my days playing trumpet, and arguably, could use some updating.  You can find it here: https://www.copyright.gov/circs/circ21.pdf

[4] How old? It was first contained in a joint letter written by representatives of the Music Publishers’ Association of the United States, Inc., the National Music Publishers’ Association, Inc., the Music Teachers National Association, the Music Educators National Conference, the National Association of Schools of Music, and the "Ad Hoc Committee on Copyright Law Revision" on April 30, 1976.  Of course, if I tell my younger sister that something from 1976 is "old," I'll catch hell, but fortunately, she teaches religious education, not music.

[5] A scenario such as the one depicted by the member doesn't even get any slack from educators' other great copyright reprieve: section 110.  While 110 does allow a variety of exceptions for musical performances, it doesn't extend its tolerance to recording.

[6] Something no not-for-profit educational institution should be without, since it can help your institution limit damages under Section 504 of the Copyright Act.

[7] As of January 13, 2020, YouTube maintains a list of licensed songs you can record and upload at https://www.youtube.com/music_policies?ar=1578920053089&nv=1.  And, also as of this January 13, 2020, YouTube (unlike Netflix or HULU) enables businesses to use their services (rather than restricting them for "personal" and "home" use).

[8] Insofar as I know, only YouTube does this.  But I need to get out more, and of course, this type of thing evolves quickly in cyberspace.

[9] This is different than permission to perform the musical composition!

Tags: Copyright, Fair Use, Music, Circular 21, Online Programming

Topic: Music Lending Libraries and Copyright - 11/6/2019
A local county Music Educators Association has approached my BOCES and has asked if we would house...
Posted: Wednesday, November 6, 2019 Permalink

MEMBER QUESTION

A local county Music Educators Association has approached my BOCES and has asked if we would house & manage their music library. Apparently, the music library was at one point housed at this BOCES, but was then moved to one of the participating districts when BOCES said they would charge a fee for the service. It is my understanding that multiple school districts buy, share, make copies and physically loan choral and band sheet music to each other. One of the music teachers has indicated that the library consists of 581 choir pieces and that each piece has 100-200 copies (and that’s not counting the band music).

I’m concerned that the number of copies the teachers have made of each choir piece is a copyright infringement and also am unsure if it’s even legitimate to loan and share the original pieces among multiple districts for the purpose of shared usage and I’m hoping you can help point me in the right direction in terms of how a music lending library could work (legally!) in terms of copyright, licensing and fair use.

WNYLRC ATTORNEY'S RESPONSE

Yes, I can point you in the right direction…but I can’t take credit for drawing the map!

Since it pertains to a local “Music Educators Association,” this question brought me on a pleasant journey into the chartered territory of the “New York State School Music Association,” a/k/a “NYSSMA.”

NYSSMA is the organization for school music educators in New York.  Its mission is to “advance music education across New York State for its membership and students in member school programs.” 

Like libraries, schools, and BOCES, NYSSMA is chartered by the Regents of the State of New York.  To enable meaningful participation on a local level, NYSSMA is broken into 15 zones. 

In the member’s question, it sounds like a local zone of NYSSMA is asking a local BOCES for assistance.

Since both entities are chartered by the Regents, this makes sense; it’s like your cousin asking if she can store tools in your garage.  Except in this case…you aren’t sure where your cousin got the tools.  Or who might ask to borrow them.

As the member points out, this uncertainly could be cause for concern.  This is particularly true because under copyright law, a license is required to not only duplicate music, but to perform it, so an entity providing unauthorized copies could experience more than one type of liability.

Fortunately, there are many helpful resources to address this, and the basics are set out in plain language on the page of NYSMMA’s national affiliate, the “National Association for Music Educators (“NAfME”).

On their helpful page, found at https://nafme.org/my-classroom/copyright/, NAfME outlines the basics of managing a music library for NYSSMA members. 

As stated by NAfME:

“Unlike most educators, music educators must face copyright compliance frequently throughout their career. Although the thought of copyright can be intimidating and a complex subject, NAfME has a multitude of resources that can help you better understand U.S. copyright law.”

How does an institution considering providing this service get started? Any institution considering housing a music library (or script library, or an architectural plans library, or anything that will be licensed and/or loaned under particular conditions) for another entity needs to do these three things:

            1.  Research and assess the full scope of what will be required;

            2.  When the full scope is known, develop a budget, policies, job descriptions and a contract (or term sheet) to support what is needed; and

            3.  Finalize the arrangements in a way that mitigates risk,[1] and makes the service effective and sustainable.

Since this type of analysis can reveal the complexities of what may seem like a simple service, it is not surprising to hear that at one point a fee was required for it!

As the resources on the NAfME site show, housing and managing a music library is potentially a very detailed endeavor.  And while technology has made some aspects of the tasks involved easier, any institution providing such a service will need to make it a part of someone’s job.

So, after reviewing the basics on the NAfME site, it would be good to have a forward-thinking and specific discussion that addresses the following:

  • Whose property are the copies to be housed and managed?
  • Are there copies of the original purchase agreements and licenses?
  • How is the collection to be searched?
  • How is the music loaned out?
  • Who tracks copies on loan?
  • What is the approach for unreturned copies?
  • Who arranges for performance licenses, and who keeps copies of permission granted?
  • How are new works accessioned?
  • How are copies de-accessioned?
  • How are damaged copies replaced?
  • What is the value of the collection?
  • What is the cost of the service?

In addressing these questions, it is important to note that NYSSMA has access to numerous copyright-related resources as a member of NAfME.  For instance, as noted on the NAfME “copyright” page: “Through an agreement with ASCAP and BMI, NAfME (or MEA) sponsored groups are granted performance rights of music managed by these organizations. (This covers only performances sponsored by NAfME or federated state associations of NAfME.) However, if members wish to record their students’ performance of any work, permission must be obtained through Harry Fox Agency.” 

So awareness of NYSSMA’s rights, as parties explore how they could assist with housing and managing a NYSSMA-owned collection, would be critical.  Solid and well-coordinated compliance with license terms would also be important.

I know this is just the overture to a full answer, but thank you for a well-composed question.[2]

 

 


[1] For instance, if the collection is valuable, insurance coverage should increase.

[2] In researching this answer, I also enjoyed reading the discussion of the qualifications of a music librarian, found on the Music Library Association’s web site at https://www.musiclibraryassoc.org/page/MusicLibrarianship.  I don’t know if a person with music librarian skills is needed for a service like this (likely not), but only the analysis I set out above could confirm that.

Tags: Copyright, Music, School Libraries, Fair Use

Topic: Live Music Covers and Permissions - 7/31/2019
First question… Our library will be hosting a live music event in the local auditorium th...
Posted: Wednesday, July 31, 2019 Permalink

MEMBER QUESTION

First question…

Our library will be hosting a live music event in the local auditorium this summer. The musicians are all local (one is a library employee). The performers are all volunteering their time and there will be no admission fee to attend the event. Do we need special licensing if the musicians perform covers of published songs? Is licensing needed for a performance if it is all original music? If covers are done would making an announcement that no recordings are to be made safeguard against copyright infringement?

Second question…

When a library schedules a live musical performance what should they be concerned about in terms of public performance? Does the library need to have any coverage in place if the musical group is playing covers of song by other artists? Is it the musical groups responsibility to obtain that permission? In this instance a local television news crew would like to cover parts of an event with musical performances. The concern is that some of the artists will be playing music that they may or may not have the rights to. What should the library consider in this situation? Even if the news crew was not covering the event, is there some type of infringement the library should be concerned about? 

WNYLRC ATTORNEY'S RESPONSE

It's a musical double act at “Ask the Lawyer” today!

Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.

These two members’ questions arrived within one week of each other. 

The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions. 

The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”[1]

To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.

Copyright

And

Performance

Factors

All songs composed by performers

Some songs composed by others (some “covers”)

All covers

Karaoke

 

Admission charged for profit

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.

 

 

Performers are paid

 

(whether or not admission is free)

 

The contract between the performer and the library, Friends or other benefactor group should specify that all songs are owned by the performers, and ideally gives maximum rights to record the performance and use the footage to raise funds for the library.

 

The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.

 

 

The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.

 

The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license held by the provider.

 

No compensation to performers

 

AND

 

Admission is free

 

This group wrote their owns songs, and they are willing to perform for free?  They must love the library!  Just make sure your library also has a contract confirming 100% ownership of songs and addressing other priorities (see “contract” comments below chart).

 

 

Okay if performance of covers is not “transmitted”[2].

 

Just make sure your library also has a contract  addressing other priorities (see “contract” comments below chart).

 

 

Okay if performance of covers not “transmitted” to the public.

 

Just make sure your library also has a contract addressing other priorities (see comments below chart).

 

 

The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.

 

No compensation to performers;

 

admission proceeds are used to benefit library

 

 

They wrote their owns songs and all the proceeds are going to the library? 

 

Super-cool performers.

 

 

Okay, so long as the performance of the covers is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).

 

 

Okay, so long as entire performance is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).

 

 

The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.

 

 

Wait!  Did we mention it’s an entire musical!?!

Your library knows a group that wrote their own musical?  That’s awesome.  Proceed…just make sure the contract has their guarantee that the work is original, spells out how the library can use the footage for fund-raising, and addresses the contract priorities listed below.

No performance without a license to the entire musical.

No performance without a license to the entire musical.

A karaoke musical?  So cool.  But definitely the contract with the karaoke machine provider needs to show an adequate license, even if it is not transmitted or recorded.

 

What if the news shows up?

 

 

Excellent. More exposure for a band with talent and originality, and for your library.

 

Excellent…more exposure for the group and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.

 

Excellent…more exposure for the group, and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.

 

My worst nightmare would be the news covering me doing karaoke.  But again, if the right licensing is in order, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).

There are a few things I am sure you’ll notice in this chart:

First, I keep mentioning having a “contract.”  No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance. 

This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library.  For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.  

The contract does not have to be extensive, but it should cover the fundamentals listed above.  It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI).  A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).

Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!”  These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.

Here is the complete text of 110(4):

[The following is not an infringement of copyright]

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A) there is no direct or indirect admission charge; or

(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

This section of the Copyright Act was crafted with just the members’ type of event in mind.  As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception.  But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).[3]

So as you see, with some careful attention to details, a show can go on.  Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983![4]) summarize:

Let the music play.

But what’s the venue say?

If there’s a license you

Can play other people’s tunes.

 

Let the covers play

If your library doesn’t pay,

and don’t transmit your groove

Then the tunes are free to use.[5]

 


[1] Anyone who has seen “Spinal Tap” knows that there are an amazing variety of things that can go wrong. 

[2] To “transmit” a performance is to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”—this includes a livestream, video, or broadcast.

[3] This is partly why I gave you a chart.  That, and I love charts.

[4] As of this writing, I am 46.  When this song came out, I was 10, and the song, along with many people’s hair, was HUGE.

[5] Parody lyrics are not legal advice.  Use the chart, consult the law, and don’t have a concert without a contract!

 

Tags: Copyright, Music, Online Programming

Topic: Copyright Liability For Programs Using Audio/Video Recordings - 10/31/18
Does our library incur any liability when a program presenter uses our facility and presents a pro...
Posted: Wednesday, October 31, 2018 Permalink

MEMBER QUESTION

Does our library incur any liability when a program presenter uses our facility and presents a program at our behest that includes music, either a previously-issued recording of music not original to the presenter, or a live performance of a piece of music composed by a person who is not the presenter? What about a presenter who just contracts to use the venue, without library sponsorship of the program? What about the capture of such a performance and our streaming it or recording it for later posting on our website or broadcasting it on our community television as a public service? If so, what is the best way to protect ourselves?

WNYLRC ATTORNEY'S RESPONSE

This is a huge question! 

I say “huge” because it has about fifteen different answers, and many of them depend on the nature of the performer, the songs performed, and the way the audience entered the performance.

But I will limit this reply to 5 answers I think are most helpful to the average library:

Answer #1: Yes, a host institution can face liability for an on-site infringing performance by either itself, OR by a non-affiliated presenter.  In a copyright case, everyone who contributed to the infringement is generally named as a defendant.  So even if the library is simply the “innocent infringer” providing the venue, there is a risk it could be sued.

Answer #2: Yes, there are several things a library can do to protect itself!  When it comes to a performance by a third party, the best option is a properly worded contract. 

For any use of its facilities, the library should have a stock contract that provides for the following:

1) verification that the performer has all the licenses and permissions it needs to perform;

2) precise language requiring the user to “indemnify and defend” the library for any legal claims related to the event (including infringement); and,

3) proof that the user has the right insurance to back up to their indemnification. 

The contract should also take into account what type of entity your library is, and how it occupies its location (Tenant?  Owner? What type of insurance do you have?). 

A lawyer familiar with insurance, real property, copyright, and premises liability law should be able to put this together for you.

Answer #3:  That said, there are several types of performance that are exempt from copyright infringement claims.  For example, under §110 (4) of the Copyright Act, it is not a violation to perform a musical work live and in person, or even to play a pre-recorded song, so long as the performance iswithout any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” and there is no “direct or indirect admission charge.” 

In other words: no transmission + no money + no commercial advantage = no problem. 

Of course, “commercial advantage” can be a tricky phrase.  If the song is being performed at the library’s annual fund-raiser, even if the performers are donating their talent, the use is not allowed.  When you think about it, that makes sense—what if the copyright owner doesn’t want to help the library with its fund-raiser?[1]  Congress was very careful in its commentary to clarify that commercial use under 110(4), even if it is for a charity, is not allowed.[2]

Further,  is important there can be no “payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” (this, again, is to prevent the free use of copyrighted material under the “guise of charity”).

That said, Congress has commented that the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly “for the performance,” are paid a salary for duties encompassed by the performance (like the salaried local high school music teach conducting an otherwise qualifying performance of the “Show Choir” at the library).  

And finally…110(4) can apply whether the performance is by your library, or by an (uncompensated) third party.  The devil is always in the details, so check with a lawyer before using this exemption, but don’t forget it’s available!

Answer #4:  If your library is regularly playing lots of music or tv, you should evaluate if your library needs a license under a performing rights society such as ASCAP, SESAC, or BMI.

A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners.  They notoriously bring lawsuits against public places like bars and restaurants for failing to secure the proper licenses.

Now, this is not guidance I typically give a library, and ASCAP, SESAC, and BMI don’t make a habit of suing libraries[3].  But there’s a first time for everything, so if your library routinely has more than one radio or tv on (that doesn’t sound like a typical library, but libraries are anything but typical these days), and you are playing music on more than one radio on a regular basis, rule that need out.[4]

Answer #5:  The member’s final question addresses recording a performance at the library, and posting it online. 

As the question suggests, this is where you have to be very careful.  A performance that might be allowed under 110(4) will become an infringement if posted to the Internet or “transmitted” in any way.  Under 17 U.S.C 1101, it could even result in a claim by the performer!  So if the intent is for your library to record, stream, broadcast, or otherwise transmit the on-premises performance, the precise circumstances should be examined very carefully, and you should make sure you have the right permissions.

So, does this mean you have to force every parent lovingly recording their child’s rendition of the theme from “Moana” during Musical Story Hour to put down their phone and just watch the performance?  No.  While there may be sociological reasons to do that[5], if your library isn’t urging or facilitating the recording or transmitting, it would be enough to put in your program “Please simply enjoy the performance, and please do not transmit any recording of it.”  Basically: be able to show that you didn’t allow, contribute to, or facilitate, any infringement.

And will Disney sue the parents of a cute kid belting out a super-sweet rendition of “How Far I’ll Go[6]” at the local library?  Unless it goes viral, it’s not too likely.  But either way you’ll be able to rest easy, knowing your policy requires them to do the right thing.

Thanks for the questions!

 


[1] Maybe they are one of those rock stars that hate libraries.  I have heard that Metallica leaves a trail of fines and broken spines in the wake of every city they play.

[2] I am of course kidding about Metallica.  Please don’t sue me, Lars!

[3] I checked the PACER database of federal law suits and could not find any cases brought by them against a library. 

[4] For more on this, see the “Ask the Lawyer” guidance titled “Transmission of a Television News Broadcast.”

[5] I am a curmudgeon about people being so busy recording a moment, they don’t actually see it.

[6] Since I have a 4-year-old, I have this song memorized.

 

Tags: Copyright, Music, Online Programming, Social Media

Topic: Inter-library Audio Files - 5/24/2018
More than once we have received requests to provide digital copies of audio files from institution...
Posted: Thursday, May 24, 2018 Permalink

MEMBER QUESTION

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Some of the questions raised from this issue: 

  • What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
  • Does it matter if audio is provided via headphone or open speakers?
  • Does it matter if an entire recording is played vs. an excerpt?
  • Are excerpts of certain duration allowable regardless of securing permissions?
    If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?
  • As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

WNYLRC ATTORNEY'S RESPONSE

This one is tricky.

It’s tricky because it stands on a no-man’s land comprised of fair use, library law, contract, and licensing.  This is a place where libraries boldly go on a routine basis, but lawyers fear to tread.  But we’ll try and parse it out.

To do so, we need to remember some “Considerations”:

Consideration #1: Section 108 (d) of the Copyright Act allows a library to duplicate and distribute, for non-commercial use, a “small part” of an audio recording based on a request of a patron or another library.

Consideration #2:  Section 108 (e) of the Copyright Act allows a library to duplicate and distribute, again for non-commercial use, the entirety of an audio recording based on a request of a patron or another library, IF a replacement copy cannot be purchased for a reasonable price.

Consideration #3: Disappointingly and tragically (but predictably), musical works are excluded from Section 108.  What does that mean?  Here’s an example: a recording of Robert Frost reading a poem may be duplicated under 108...but a recording of that same poem set to music may not. 

Consideration #4: Although Congress legislated that 108 protections don’t apply to musical works, it has also stated[1]:

…it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. [emphasis added]

Which brings us to…

Consideration #5:  A library can make a partial or complete copy if it is a “fair use.”  Fair use is determined on a work-by-work basis, applying the four factors[2] set out in Section 107 of the Copyright Act. 

Consideration #6:  An initial “fair use” can meet the requirements of 107 (say, 10 bars of music contrasted with another in a documentary film), but a subsequent, related use might not (the same 10 bars in an TV ad for the same documentary).

Consideration #7:  None of this matters if the copy is coming from a license (a contract) that imposes greater restrictions a library.

 

Bearing these seven “Considerations” in mind, let’s check out the member’s questions in relation to the scenario they provided:

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.

Question: What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?

Answer: If the work is protected by copyright, and they can’t justify a fair use, they need a license to play the audio at their exhibition.  As the member points out, if the library providing the copy is not also the rights holder, the requesting party needs to work with that third party for permission to play the copy in public (unless it is a fair use).

But that is a secondary consideration for the library who might be providing the copy.  Remember “Consideration #6:” the initial basis for the request could be allowed under 107 or 108, even if a latter use in not allowed. Combine that with what we established in “Consideration #4:” Congress knew that subsequent uses might not be legitimate.  So, to protect libraries, and to protect the sharing of knowledge for purposes of scholarship and creativity, they made it very clear: if the first basis for the copy is legitimate, and the providing library has no knowledge of plans for infringing uses, the providing library will not be liable for infringement.

This is hard, because librarians are both helpful, and tend to be relentless gatherers of information.  If a patron requests a copy and discloses an infringing use for that copy, it cannot legally be provided.  This is true even if the requester subsequently gets a license (since there is no guarantee the license would retroactively extend to the providing library), although at that point, any damage claim would likely be moot. 

Question: Does it matter if audio is provided via headphone or open speakers?

Answer: The number of speakers (headphone or otherwise), the location of the devices, the size of the audience, and the capacity of the venue matter can all matter to an analysis of fair use.  But again, unless the exhibition is the only reason for the request, that information should not impact a providing library’s 108 or 107 analysis, unless the precise use is disclosed as part of the immediate basis of the request.

Question: Does it matter if an entire recording is played vs. an excerpt?

Answer: If the requesting institution is relying on a fair use defense, absolutely, yes.  The amount of the work used is one of the four factors.

Question: Are excerpts of certain duration allowable regardless of securing permissions?

Answer: Recent case law[3] shows that even the tiniest duration can be infringement, if fair use factors are not met.  But don’t let that stop you from providing a 107 copy!  If the fair use factors are met, it is conceivable that a person could use the entire work.  There is no set formula; fair use can only be assessed on a work-by-work basis.

If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?

This is not a binary question, it is an algorithm.  Here we go:

  • The holding institution should try to ascertain if the work is still protected by copyright.  As the member points out, this depends on dates and publication status.  If it is still protected…
  • The holding institution should establish what type of copy it is providing: 108(d), 108(d) or 107. 
  • If it’s a 108 (d) copy, the institution should document that the 108 (a) and (d) factors are met, and if they are, may copy a “small part” (but remember, 108 doesn’t apply to a musical work).
  • If it’s a108 (e) copy, the institution should document that the 108 (a) and (e) factors are met, and if they are, may copy the entire work (by now, you surely remember that 108 doesn’t apply to a musical work).
  • If it’s a 107 (fair use) copy, after applying the factors, only copy what’s justified; when in doubt, seek legal advice.  This is tough to give guidance on, because “fair use” can only be assessed on a case-by-case basis.  For the example provided, there is no clear answer.  Sometimes, even if the access to the work is free, the use isn’t “fair,” while sometimes, even if money is charged, the fair use factors are met.  So if you go down the 107 road, be sure to get information relevant to the factors, stick to the use at hand (not potential later uses), and apply the factors.  This is true for both commercially released recordings and for archival, unpublished recordings (although publication status is part of the second fair use factor).

Question: As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

Answer: As quoted above, it was the intent of Congress that a library not be liable for subsequent unlawful use.

For a 107 copy, this starts and ends with the library’s assessment of the fair use for the copy at the time of the request.  Your forms should solicit information only about the immediate need for the copy, and assess if the request is within your institution’s comfort zone.  Your forms should not ask about prospective future uses, which may be beyond your control, nor should you feel any obligation to police the use, which is impossible.

 

Here is food for thought: forms should promote making a 108 copy whenever possible.  108 protection, while narrower, is far less subject to debate; 108 factors are clear and easy to document.  “Fair use,” on the other hand, is often in the eye of the beholder.  Judges must not only apply four factors of analysis, but as recent case law has recently re-affirmed[4], the four factors are not so much weighed, as considered in relation to each other.  It’s a tough analysis that unfortunately inspires erring on the side of caution.  So use 108 whenever it can apply.

A lot of questions, a lot of answers, and a lot of food for thought.  This is a rapidly evolving area of law, so check back in on this issue in a year or so.  The Copyright Office, various library organizations, and Congress all know that the law isn’t quite up to the challenge of technology (108 still uses the word “phonorecord,” which my Spellcheck actually refuses to recognize), so this complex web will continue to evolve. 

And in the meantime, if someone requests a copy of audio by Anthony Barré, use it as an excuse to read Estate of Anthony Barré and Angel Barré v. Carter, et al.  (a/k/a Beyoncé and Jay-Z), because it’s a good illustration of why this response is so very, very convoluted!



[1] House Report 94-1476.

[2] The factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

[3] Estate of Anthony Barré and Angel Barré v. Carter, et al. No. 17-1057 (E.D. Lou. July 25, 2017).  In this case, pop star Beyoncé used very small clips from Anthony Barré’s recorded spoken word performances in the song “Formation;” the court ruled that while the amount of Barré’s work used very small, and was but a small part of the song, the overall factors did not make the use fair.

[4] Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016)

 

Tags: Copyright, Fair Use, Laws, Music

Topic: Digitizing dramatic and musical works - 3/1/2018
When it comes to digitizing large theater and music program collections, it is well-established th...
Posted: Thursday, March 1, 2018 Permalink

MEMBER QUESTION

When it comes to digitizing large theater and music program collections, it is well-established that a library can digitize anything before 1923, and that if there are no copyright notices on them, can digitize anything before 1978.  But if there are multiple "copyrightable" elements in the works (advertisements, photos, actor biographies, illustrations, etc.) is it okay to digitize them? What is the risk in digitizing a program when there is a copyright notice on one or more element in the program, but not all of it? If a theater or musical society is defunct, is it okay to digitize the programs associated with it beyond 1978 or when it may have a copyright notice?

 

WNYLRC ATTORNEY'S RESPONSE

This is a complex issue (although not nearly as complex as assessing a library wing full of dramatic and musical works).  To unpack this, I will take advantage of a form suggested by the topic: the opera libretto.

[Cue overture…]

ALTO:  Can works with no copyright notice before 1978 be safely digitized?

BASSO:  Beware, if they were previously unpublished or the trademark is still monetized.

ALTO: What about text works with multiple works inside them?

BASSO:  A compilation notice may protect the whole system.

ALTO: What about a work included in an unregistered collection?

BASSO:  Beware!  That work may have a separate protection.

ALTO:  If a theatre organization has folded, can their work be duplicated?

BASSO:  The copyright could have been transferred, so…it’s complicated.

SOPRANO:  So you’re saying…[crescendo] you DON’T KNOWWWWWW?

BASSO: ….no. 

[triangle]

Okay, enough of that.

The bottom line:  There is no bright-line rule I can provide to give assurances for works that are post-1923 (and, for unpublished works like journals or private recordings, items authored prior to that date).  Between image rights, trademark, privacy, and overlapping copyright terms, projects like the one described in the question can bring an array of legal considerations.  Adding music to the equation—which is exempted from §108, the law that allows certain copying at libraries—only heightens the concerns.

The key to designing a digitization project that can survive this type of risk assessment resides in the question: why does the collection, and the particular items in it, need to be digitized in the first place?

If the answer is, “for preservation,” then documenting, on a work-by-work basis, that either there are no protected elements in the work, and that all 108 factors have been met, is the key (NOTE: this would likely involve restricting some of the collection to on-site access only).

If the answer is, “for ADA adaptability,” then documenting, on a work-by-work basis, that the digitization was only for purposes of making an accommodation is the key.

If the answer is, “so the whole world has easy access to high-resolution, searchable, meta-tagged copies of the material,” then verifying, on a work-by-work basis, that no valid copyright or other bar to duplication and online publication is the key.  Materials still under copyright could not be available for download, but could be listed as on-site and available for copying if allowed per §108. 

If the answer is, “so the whole world has internet access to low-resolution, water-marked, searchable, thoughtfully meta-tagged copies of representational selections of each title (whether under copyright, or not), presenting the bare minimum of what’s needed for researchers to determine what we have on site and available for §108 copying,” then carefully following the four “fair use” factors is the key.

If the answer is, “so the whole world has internet access to our carefully curated, scholarship-oriented, presented-with-commentary-and-criticism, non-market-disrupting, selective array of material carefully culled to represent the breath and scholarly value of our larger collection of theatrical and musical materials available for §108 copying” then designing an end product that meets the four “fair use” factors is the key.

I realize this is a chicken-and-egg reply: if you can’t clear answers on what you can do with the material, how can you envision what to do with it?  My reply to that is: trust that your mission to provide access to information is supported by the law.  Think about the materials, develop a theme as to why access to them is important, acknowledge any potential boundaries, and a legal solution can be found.  Bring in a lawyer to advise on specifics when needed,[1] like a decision to invoke “fair use,” to set up clear parameters for copyright determinations, or how to best document use of §108. 

Since access is your mission, copyright should only inform, not deter it



[1]Sometimes, you just need a lawyer.  This RAQ can cover a lot of helpful general ground, but some things—like designing a particular fair use, or crafting the legal parameters for a specific project—can only be done through confidential legal advice based on viewing the precise materials and circumstances.  

 

Tags: Copyright, Digitization and Copyright, Music

Topic: Digitizing and hosting audio recordings containing copyright-protected material - 12/27/2017
When digitizing radio broadcasts of cultural significance (such as a talk show confronting social ...
Posted: Wednesday, December 27, 2017 Permalink

MEMBER QUESTION

When digitizing radio broadcasts of cultural significance (such as a talk show confronting social issues), must a library, museum, or archive remove any separately copyrighted songs before posting the recordings?

This question assumes that the library, museum, or archive owns or has a license to use the overall recording of the broadcast.

WNYLRC ATTORNEY'S RESPONSE

When digitizing radio broadcasts for online (not-for-profit, academic) access, there are a number of legal issues to consider: intellectual property, contract, privacy, preservation, etc.  But the question focuses on copyright, so this answer does, too. 

And that answer is…yes, including copyright-protected songs[1] in digitized broadcasts poses a risk of an infringement claim--but that risk does not need to trump the basis for preserving the broadcast in the first place.

How does the law help a digital archive strike that balance?  Here are some options:

Option 1: If the copyrighted songs are not important to the broadcast, and can be removed without affecting the integrity of the broadcast, remove them.

If the basis for preserving and providing access to the broadcasts (capturing a moment in time, showing a spirit, confirming an approach) is not served by the presence of the songs, the best legal option might be to remove them, noting the redactions in a manner appropriate to the archive.

That said, I can only imagine a few scenarios where this is this case.  So, next we have…

Option 2: Ask for acknowledgement of Fair Use, and permission

If not onerous, asking the copyright holder to acknowledge the Fair Use of their valid copyright, and to consent to such use in case later rights holders disagree, can be a wise step. 

HOWEVER, as it can alert an owner to a potential claim, this should only be attempted with careful, customized input by an attorney, with due consideration as to how to avoid making an adverse admission, and what the implications could be if the rights to the song are later transferred (since one person’s Fair Use is another person’s rip-off). 

Most importantly, such acknowledgement should only be sought prior to the recordings being posted.  That is because the library, museum, or archive may want to protect their ability to simply claim…

Option 3: Fair Use

Including the songs could be non-infringing if the use meets the requirements of “Fair Use.”[2]  This is a posture taken by many online archives, and with good reason: Fair Use is a creature of both case law, and convention, so for most scholars and librarians, it is important to hold the Fair Use line, letting the world know that this important exception to infringement is alive and well.

That said, a “Fair Use” defense is assessed via a four-factor analysis (see the footnote); in this type of case, each broadcast recording and song would be subject to its own analysis.

While there is no case law directly on point, the recent case of Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013), which involved the use of a proprietary logo during a documentary film, states “[f]air use…protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” [emphasis added].

Using option 3 will require some clear-eyed assessment by the project leaders and institutional decision-makers.  Is the entire song truly necessary to preserve the integrity, spirit and tone of the original?  Does the overall recording transform the song into something different than its original?  Does the manner in which the recording is presented make is difficult for the new version to supplant the market for the original? If not, the library, museum, or archive might want to consider…

Option 4: Fair Use “Lite”

With the Fair Use “Lite” approach, the institution would redact all but the first and last moments of the copyright-protected song (leaving any parts the hosts/guest are talking over) claiming Fair Use for the remaining portions.  This could be done by a fade-in, fade-out technique, or another aural cue that the recording is departing from the original.

If it doesn’t destroy the integrity of the project, “Fair Use Lite” is worth considering, because the smaller the portions of the songs, the stronger your Fair Use claim might be, since factor 3 will weigh more in your favor.  If there is any original dialogue over the song, that, too, can be left, with a claim that the content is “transformative” (factor 1).

If the decision is made to keep the recordings intact, or to use at least part of them, it may be helpful to have the basis for the claim available to the public; something like:

These recordings capture an important moment in time.  The songs played, content shared, and material included in these revealing broadcasts were all selected by the original broadcasters for a reason; these digital versions are valuable because they paint an accurate and complete picture of the sound and feel of the times.

To the extent any proprietary material is present, its inclusion in this larger work is a Fair Use, warranted by the importance of presenting the material as a whole.  Critically, please note that this use is not-for-profit, for educational purposes, and no commercial use of this content is made, nor allowed.  If any content or restriction in this archive concerns any person, please contact NAME, at EMAIL.

And finally: prior to posting any digital archive, if it is an option, an institution should consider registering the copyrights to the MP3 files.  This will position the institution to enforce any restrictions it places on use of the sound recording (like disallowing commercial use)…even if the purpose of the digital archive is to promote access and dissemination of the material!

As more audio content is archived and stored for cultural, historic, and academic purposes, this issue will grow.  I expect we may have some case law directly on point soon.



[1] When confronted with this issue, it is worthwhile to take a close look at the songs involved.  Some pre-1972 sound recordings do not have copyright protection, an issue playing out in what is known as the “Flo & Eddie” line of cases (just look up Floe & Eddie, Inc. v. Sirius XM Radio, Inc., and you’ll see what I mean).  Of course, the underlying musical composition might be protected, even when the recording is not…but the recording may be less protected than you think!

[2] Congress provides a list of four factors that guide the determination of whether a particular use is a fair use. Those factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C.S. § 107. These factors cannot be treated in isolation from one another, but instead must be weighed together, in light of the purposes of copyright. This balancing necessitates a case-by-case analysis in any fair use inquiry. The United States Court of Appeals for the Fourth Circuit's precedents have placed primary focus on the first factor. A finding of fair use is a complete defense to an infringement claim: the fair use of a copyrighted work is not an infringement of copyright. 17 U.S.C.S. § 107.

 

 

Tags: Copyright, Digitization and Copyright, Fair Use, Music

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